These and other similar legal strategies are designed to bring pressure to bear on Web sites and individuals who may not have the stomach for a protracted legal battle. The strategies are tailored to achieve the same goal; protecting your brand by convincing Web sites and individuals to voluntarily remove defamatory content.
Consider this hypothetical: You’ve worked hard to build a restaurant business. You’re thriving in a tough industry through a combination of excellent food, outstanding service and savvy marketing. You have a solid stable of repeat clientele, and your prospects of growing the business to a second location across town look good.
During a discussion with a potential investor, however, you learn that he ran across some scathing remarks about your restaurant on a blog—let’s call it KCfoodie.com—that encourages users to post their own reviews. The investor wants to know: Is it true that behind the shiny veneer, your restaurant is a condemnable health hazard on the brink of being shuttered by authorities?
It isn’t true. You’re livid.
First chance you get, you visit KCfoodie.com to figure out who’s saying these awful things about you. But alas, the comments are posted anonymously, under the screen name @yossarian22. Based on some of the content, you suspect a disgruntled former employee, but have no proof it was him. You send an angry email to the site administrator demanding that the reviews be taken down. Her response is infuriating: She states that KCfoodie.com is in no way responsible for the content of user-generated reviews, and refuses to remove the offending statements. In the meantime, the false allegations are there for everyone to see—customers, investors, vendors and lenders alike.
Some of you may have suffered a similar experience in your own businesses. Would-be critics can now hide behind the Internet’s curtain of anonymity. It’s made them brave—even reckless. They often feel free to cross the line between fervent criticism and outright defamatory statements.
What can you as a business owner do about it? In some cases, a sternly worded letter from your lawyer may convince Web-site administrators to voluntarily remove the defamatory content. Some Web operators, however, staunchly refuse to cave to such pressure. So what’s next? Consider again our restaurant example:
“I’ll sue KCfoodie.com for libel,” you might say. The Web site, after all, has published someone else’s lies about you for the whole world to see. You’re legally entitled to force the Web site’s administrators to remove the defamatory statements. Right?
In actuality, you’re probably wrong. It is nearly impossible to get a court to order anyone to remove content from a Web site, even if it’s blatantly false. Courts generally reject such efforts as “prior restraints” on free speech in violation of the First Amendment.
What about suing the Web site for damages? Surprisingly, KCfoodie.com is probably immune from suit on your defamation claim. In 1996, Congress passed a landmark piece of internet legislation called the Communications Decency Act. One controversial section of that act gives operators of Web sites broad immunity from legal liability for allowing third-party users to post content. With only a few rare exceptions, this immunity insulates Web site operators from tort claims associated with publishing comments by others.
So what’s left to do? If you could discover who was behind the screen name @yossarian22, you would try to hold him or her responsible, right? Fortunately, there’s a cumbersome but nonetheless effective way to do so.
Your lawyer can file a defamation action on behalf of your business naming @yossarian22 as an unknown “John Doe” as defendant. Once the lawsuit is filed, your lawyer can use the subpoena power of the court to compel a site such as KCfoodie.com to disclose any information they may have about the anonymous poster. If you’re lucky, the Web site will have specific identifying information such as a name or email address.
Sometimes, however, the only information available is the poster’s Internet Protocol (“IP”) address, which would then require a further subpoena to the Internet service provider for that person’s identity. Either way, your counsel should be able to follow the digital “trail of breadcrumbs” left by the anonymous poster, and hold him or her accountable.
– Reprinted from Ingram’s, February 2012, “Protecting Your Business From Online Defamation, by J. Justin Johnston